February 2016

Engage EarlyGuidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)

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© Commonwealth of Australia, 2016.

Engage Early—Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is licensed by the Commonwealth of Australia for use under a Creative Commons Attribution 4.0 International licence with the exception of the Coat of Arms of the Commonwealth of Australia, the logo of the agency responsible for publishing the report, content supplied by third parties, and any images depicting people. For licence conditions see: http://creativecommons.org/licenses/by/4.0/au/

This report should be attributed as ‘Engage Early—Guidance for proponents on best practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), Commonwealth of Australia 2016’.

The Commonwealth of Australia has made all reasonable efforts to identify content supplied by third parties using the following format ‘© Copyright, [name of third party] ’.

Disclaimer The views and opinions expressed in this publication are those of the authors and do not necessarily reflect those of the Australian Government or the Minister for the Environment.

Cover images: (Front) Indigenous rock art at Ubirr Rockv (Michelle McAulay) © Copyright Department of the Environment (Back) Rock formations in Kakadu National Park (Michelle McAulay) © Copyright Department of the Environment

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Overview

The Australian Government’s central piece of environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), recognises that Indigenous peoples have an important role in the conservation and ecologically sustainable use of Australia’s biodiversity and Indigenous heritage. The ‘Engage Early – Guidance for proponents on best practice Indigenous engagement for environmental assessments under the EPBC Act’ (the Guidelines) aim to improve how proponents engage and consult Indigenous peoples during the environmental assessment process under the EPBC Act. It provides guidance to project proponents on when Indigenous communities should be consulted (in addition to the statutory public comment periods required under Part 8 of the EPBC Act), and sets out the Department of the Environment’s (the Department) expectations on how Indigenous engagement should occur.

This document should be read in conjunction with Ask First: A guide to respecting Indigenous heritage places and values, published by the Australian Heritage Commission (now the Australian Heritage Council) in 2002. The Ask First guidelines are a practical guide for proponents on Indigenous heritage issues and include steps for consultation and negotiation. The Ask First guidelines can be found on the Department’s website at: www.environment.gov.au/resource/ask-first-guide-respecting-indigenous-heritage-places-and-values

The Australian Government considers that best practice consultation includes:

• identifying and acknowledging all relevant affected Indigenous peoples and communities

• committing to early engagement at the pre-referral stage

• building trust through early and ongoing communication for the duration of the project, including approvals, implementation and future management

• setting appropriate timeframes for consultation, and

• demonstrating cultural awareness.

One-Stop Shop policy for environmental approvalsThe Australian Government is committed to the development of the One-Stop Shop for environmental approvals, which will accredit state planning systems under national environmental law to create a single environmental assessment and approval process for nationally protected matters. The One-Stop Shop policy aims to simplify the approvals process for proponents while maintaining high environmental standards.

These Guidelines apply to projects that are required to be approved by the federal Minister for the Environment under existing EPBC Act processes. The Australian Government will work with states and territories on how these Guidelines will apply under bilateral agreements, once the One-Stop Shop policy is finalised.

United Nations Declaration on the Rights of Indigenous PeoplesThe Australian Government supports the United Nations Declaration on the Rights of Indigenous Peoples (2008). The Declaration recognises the importance of consulting with Indigenous peoples on decisions affecting them and that respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.

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Indigenous engagement under the EPBC Act

When should Indigenous communities be consulted?The EPBC Act recognises that Indigenous peoples play an important role in the conservation and sustainable use of Australia’s natural environment. It also recognises the importance of a co-operative approach between the Government, community, landholders and Indigenous peoples (Section 3(1)). Consultation with Indigenous peoples should not just be limited to matters of cultural heritage. Indigenous peoples should also be consulted on other protected matters that are likely to be impacted by the proposed action.

The EPBC Act includes statutory public comment periods during which Indigenous communities can provide valuable input into the environmental assessment of a proposal, such as traditional knowledge of the value of a place or species. If this information is provided, it must be taken into account by the Minister in determining whether or not a proposed action can proceed. Further information on the statutory public comment periods required under the EPBC Act assessment processes is at Appendix 1.

There are some situations where the Department expects that consultation with Indigenous peoples will occur in addition to the statutory public comment periods. The following are examples of where additional consultation with Indigenous peoples is likely to be required for assessment under the EPBC Act:

• the proposed action will have, or is likely to have, a significant impact on the listed Indigenous heritage values of a National Heritage place or World Heritage property and/or is likely to significantly impact on a protected matter that has Indigenous heritage values (including through impacts on biodiversity)

• the proposed action will occur or impact on Commonwealth Land, or the Commonwealth Marine Area and will have, or is likely to have, a significant impact on the Indigenous heritage values of that place

• the proposed action is a nuclear action and will have, or is likely to have, a significant impact on the Indigenous heritage values of the environment

• the proposed action will occur on an area that is, or could in the future be, subject to a native title claim or determination.

In these situations, proponents should consult at the pre-referral stage and include a report in their environmental assessment documentation. The report must demonstrate genuine consultation with Indigenous peoples and show how any issues raised during the consultation have been addressed. Providing sufficient information and demonstrating that consultation is effective can help ensure a smoother assessment process and avoid potential delays if further information or consultation is required.

Outcomes of Indigenous consultation will be included in the environmental impact assessment documentation that is made available for public comment during the referral and assessment stage. Members of the public, including Indigenous stakeholders, are able to provide comments during these stages.

Where a proposed action is likely to significantly impact on a protected matter that has Indigenous heritage values, such as a listed heritage place, the views of affected Indigenous peoples should be sought and treated as the primary source of information in relation to the value of that heritage1.

1 EPBC Act Regulations Schedule 5B(6) – National Heritage management principles

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Land rights and native title

In addition to the statutory public comment periods for projects assessed under the EPBC Act, there is other state and Commonwealth land rights and native title legislation that requires proponents to consult with, and in some cases, gain the consent of, traditional owners in relation to a proposed action.

Indigenous peoples hold rights or interests over significant parts of Australia. These interests are recognised in a number of ways, including communally held freehold or leasehold title under statutory land rights regimes, Aboriginal heritage sites, and exclusive and non-exclusive native title rights. Proponents should identify and engage as appropriate with the relevant native title group, land council(s) and/or other Indigenous landholding group(s) as early as possible in the planning process, noting that Indigenous land related processes may not occur at the same time as EPBC Act processes.

For a determined area of native title, the native title rights and interests are generally held and managed by a registered native title body corporate (commonly referred to as a Prescribed Body Corporate). The relevant contact for native title claimants and some native title holders will generally be a representative native title body, such as a land council or service provider. Proponents should be aware that there may be multiple Indigenous interests in an area, as there may be overlapping or contested claims to ownership or native title.

The Prescribed Body Corporate for a determined area of native title can be identified through the National Native Title Register, and the registered native title claimants and relevant representative body or service provider through the Register of Native Title Claims, maintained by the National Native Title Tribunal: www.nntt.gov.au/Pages/Home-Page.aspx

Land rights and native title – other key facts

• There are various statutory land rights regimes across Australia that apply to specific jurisdictions. For example, the Aboriginal Land Rights (Northern Territory) Act 1976 is a statutory land rights regime operating in the Northern Territory that recognises the Indigenous system of land ownership and has a mechanism for granting inalienable communal freehold title. State and territory land rights legislation includes:

– Queensland: Aboriginal Land Act 1991

– New South Wales: Aboriginal Land Rights Act 1983

– South Australia: Aboriginal Lands Trust Act 1996

– Victoria: Aboriginal Lands Act 1970

– Northern Territory: Aboriginal Land Rights (Northern Territory) Act 1976

– Tasmania: Aboriginal Lands Act 1995

• Proposed acts or developments that affect native title are classed as ‘future acts’ under the Native Title Act 1993. The legislation sets out acceptable minimal standards of consultation with native title groups for a future act to proceed. These range from notification to approval, depending on the type of act.

• Proponents should work with relevant state or territory agencies to ascertain whether any obligations to notify, consult or negotiate with native title groups arise under the Native Title Act 1993.

• Exploration or mining activity may invoke the ‘right to negotiate’ provisions of the Native Title Act 1993. This provides an opportunity for native title parties to negotiate agreements with proponents. These agreements detail the conditions for undertaking the particular future act, including in some cases provision for employment and training, environmental or cultural heritage protection or compensation and payments.

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Indigenous Land Use Agreements

The Native Title Act 1993 also allows native title groups and other interested parties to voluntarily enter agreements known as Indigenous Land Use Agreements (ILUAs). ILUAs can cover both future acts (e.g. exploration or mining activity) and non-future acts (e.g. use and access agreements that regulate co-existing rights).

If there has been a determination of native title by the Federal Court over the whole of the ILUA area and one or more registered native title bodies corporates have been established for the whole area, then a ‘body corporate agreement’ is required. All of the registered native title bodies corporates must be parties to the ILUA.

‘Area agreements’ are the most common form of ILUA, and can be made if there are not registered native title bodies corporate for the whole ILUA area. The making of an area agreement must be authorised by all the persons identified, after all reasonable efforts have been made, as being those who hold or may hold native title to the agreement area.

Environmental offsets

Environmental offsets are measures designed to compensate for the residual significant environmental impacts arising from an action. Offsets are considered during the assessment stage under the EPBC Act and may be required as a condition of approval for a development.

There can be opportunities for Indigenous peoples to work collaboratively with project developers to manage an environmental offset and/or to manage their country as an environmental offset/s. This could involve protecting or managing an area of land or sea to benefit a particular matter of national environmental significance, such as a threatened species or heritage place, using offset funding provided by a proponent.

Given the role of Indigenous peoples in the conservation and ecologically sustainable use of natural resources, proponents should actively consider opportunities for engaging and working collaboratively with Indigenous stakeholders to

develop and deliver environmental offsets. Where appropriate, an ILUA may be sought to formalise the agreement on the offsetting activity.

The EPBC Act Environmental Offsets Policy allows for offsets to be considered for listed heritage values in some circumstances, noting that many types of heritage values are irreplaceable. For offsets that relate to impacts on listed Indigenous heritage values, Indigenous stakeholders, including traditional owners, must be consulted and be the primary source of information on what offsetting activities are considered possible or appropriate.

While the primary consideration in determining suitable offsets is delivering a conservation gain for the impacted protected matter, the delivery of offsets that establish positive social or economic co-benefits is encouraged.

Social, economic and environmental co-benefits may be delivered where an offset aligns with broader strategic environmental objectives such as those outlined in the National Wildlife Corridors Plan, the Indigenous Australians Health Programme, Closing the Gap, Indigenous Advancement Strategy, the Indigenous Protected Areas programme, or policies that enhance the environment of regional Australia. For example:

• an offset contributing to an area recognised as important to increasing landscape connectivity, above and beyond what is required by the impacted protected matter

• an offset that employs local Indigenous land and sea managers (including rangers) to undertake management actions

• an offset delivered by paying rural landholders to protect and manage land for conservation purposes.

In some circumstances, there may be opportunities for proponents to work collaboratively with Indigenous peoples to identify other possible co-benefits, which may be related to traditional ecological knowledge and skills, language, and heritage protection.

The EPBC Act Environmental Offsets Policy details a range of considerations that need to be taken into account when formulating an offsets package, and is available at: www.environment.gov.au/epbc/publications/environmental-offsets-policy.html

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Engaging with Indigenous peoples effectivelyGood Indigenous engagement is defined as ‘any process that involves the Aboriginal and Torres Strait Islander peoples in problem solving or decision making, and uses community input to make better decisions’ 2. Engaging effectively with Indigenous peoples and communities during environmental impact assessments under the EPBC Act requires:

• working with local Indigenous organisations to identify all relevant affected Indigenous peoples

• building relationships and trust through early and ongoing communication for the duration of the project, including approvals, implementation and future management.

• early engagement and appropriate time frames

• cultural awareness and competency.

Good engagement also involves clarity on the purpose of the activity from the outset – this should be based on an agreed approach with affected Indigenous peoples on the manner, timing and level of consultation and involvement required for the project. Refer to Appendix 2 for a hypothetical example which demonstrates how proponents can engage effectively with Indigenous peoples.

Identifying relevant Indigenous communities for engagement

Identifying the Indigenous peoples, communities and representative organisations relevant to your proposal is a crucial element to ensuring the engagement process is effective for all parties. This is especially important in situations where there is more than one relevant Indigenous community or traditional owner group. This should be done as early as possible in the planning stages of your project. Proponents can contact their local land council or native title representative body or service providers who can assist with contacting the correct traditional owner group(s) and ensure that consultation and decision-making provisions are followed correctly.

2 https://www.dss.gov.au/sites/default/files/documents/05_2012/what-is-good-engagement-factsheet1_0.pdf

Contact details for all native title representative body or service providers can be found at www.nativetitle.org.au/links.html

In addition to Native Title, there are other community and legal frameworks that recognise traditional ownership. For example, under the Aboriginal Land Rights Act 1983 (NSW) and the Aboriginal Land Rights Act 1976 (NT), the Register of Aboriginal Owners must keep and maintain a Register of Indigenous peoples who have a cultural association with an area of land in NSW. For more information see: www.oralra.nsw.gov.au/register.html

Guidance for proponents: Identifying relevant Indigenous peoples

• Identify Indigenous peoples with rights and interests as early as possible in the planning stage of your proposal.

• If needed, seek advice on how to identify relevant Indigenous peoples for your proposal from Native Title Representative Bodies, state offices/departments, the National Native Title Tribunal, native title representative bodies/service providers.

• Establish whether Indigenous stakeholders are represented through a particular organisation that can speak on their behalf, for example through a Native Title Representative Body Land Council, or if direct engagement with individuals or communities is appropriate.

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Early engagement and appropriate time frames

Best practice consultation involves proponents working with local Indigenous organisations to identify and contact relevant Indigenous peoples and communities as early in the project planning process as possible. Proponents should provide appropriate timeframes for consultation. This may require commencing consultation with Indigenous peoples prior to referring a proposed action to the Department. Special measures may be required to effectively engage and seek input from Indigenous communities. Proponents should liaise and consult with relevant Indigenous peoples throughout the development of their project and the environmental impact assessment process.

Guidance for proponents: early engagement and appropriate timeframes

• Be aware of statutory processes setting out consultation and consent processes.

• Respect that Indigenous peoples may need time to reach a consensus on appropriate conservation and management.

• Respect Indigenous peoples’ right to choose the time and location of the meetings.

• Allow time for Indigenous peoples to decide whether they wish to become involved in the activity or project.

Cultural awareness

Indigenous peoples have a unique relationship with country and an ongoing cultural obligation to care for the land, sea, waterways, plants and animals. It is also important to recognise that Indigenous communities are very diverse and an understanding of the relevant Indigenous communities’ culture, worldview, language, communication preferences and cultural protocols is critical for effective engagement. What works well for engaging with one community may not be appropriate for another.

When planning to visit a community, it is important that you seek advice on the appropriate protocols and things to be mindful of before arriving. This preparation assists in showing appropriate respect to the community and setting the foundation for building a good relationship.

Indigenous peoples have protocols governing death and grieving, known as sorry business. The process of sorry business varies between Indigenous communities. Sorry business may be marked by days or weeks of ceremony following the death of a community member in some regions or restricting the use of the deceased’s name and image in others. It may not be appropriate for engagement to occur during these periods.

Demonstrating cultural awareness includes seeking advice from the affected Indigenous peoples about any cultural protocols that should be adhered to.

Guidance for proponents: cultural awareness

• Identify all relevant Indigenous groups which may be impacted by your project, noting that this may be multiple groups.

• Contact the relevant Native Title Representative Body and/or other local Indigenous organisations for guidance on cultural customs and any other issues.

• Identify the communication needs of the Indigenous peoples you are consulting with. As English may be a second language for some Indigenous communities, an interpreter may be required.

• Identify and adhere to any process or cultural protocols that Indigenous peoples have established for consultation.

• Establish any issues that cannot be discussed in an open meeting of all stakeholders.

• Decide if there are any requirements in relation to the disclosure of sensitive information or particular traditional customs.

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Building relationships and communication

Early and ongoing engagement in a culturally appropriate manner is widely recognised as one of the key elements of best practice consultation with Indigenous peoples. Ongoing communication and partnerships with Indigenous communities can build trust and strengthen their understanding of your proposal and their confidence that their comments are valued and will be considered fully.

Proponents should aim to develop a relationship with relevant Indigenous peoples and not leave this solely to consultants (should the proponent employ one to assist with the Indigenous engagement). It may be appropriate for consultation to occur in smaller groups rather than large meetings and to require multiple visits to affected communities. These visits may be required to invite people to discuss the proposal, provide information in a suitable language or format, and to obtain Indigenous peoples’ views after a sufficient time period for consideration has passed. Effective engagement may require flexibility – some consultation processes may need to include sessions outside normal business hours.

Guidance for proponents: building relationships and communication

• Provide clarity on the purpose of the engagement activity from the outset – this should be based on an agreed approach with affected Indigenous peoples on the manner, timing and level of consultation and involvement required for the project.

• Gain an understanding of and show respect for any cultural practices or protocols of the Indigenous peoples/community you are engaging with, and then plan and conduct your engagement accordingly.

• Publish relevant advertisements, publications and notices of your proposal in Indigenous media, including newspapers and radio. For example, the Koori Mail and the National Indigenous Times, and the National Indigenous Radio Service.

• Agree on the manner, timing and level of consultation and involvement required for the project. Formalise any protocols and agreements with Indigenous communities, noting these may be a separate statutory process.

• Agree on processes for consent from Indigenous peoples to display any information gathered, including publishing on the Internet, to avoid any culturally inappropriate disclosure.

• Outline any prior discussions and agreements with third parties (e.g. State agencies) and other stakeholders (Indigenous and non-Indigenous) that need to be consulted.

• Determine whether there is a need to help resource the distribution of the results of any work, the process for obtaining comment from Indigenous peoples on reports and how many copies of the final report are required.

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Dealing with disputes

Disputes may arise over the course of the consultation process. These may involve disputes between Indigenous groups, and/or disputes between Indigenous stakeholders, other stakeholders and the proponent. It is important to realise that disputes between groups can be longstanding and may influence the consultation process.

Guidance for proponents: dealing with disputes

Disputes between Indigenous groups

• Do not become involved in disputes between Indigenous groups as they need to be resolved at the community level.

• Consider resourcing an appropriate independent facilitator to assist resolving the dispute.

• Allow time for the dispute to be resolved.

Disputes between Indigenous groups, other stakeholders and the proponent

• At the commencement of consultation, reach agreement on processes for mediating and resolving disputes.

• Identify formal and informal dispute resolution processes.

Who can I talk to if I need further information?Further information about the EPBC Act is available from the Department of the Environment’s website at www.environment.gov.au/epbc, by emailing ciu@environment.gov.au, or calling 1800 803 772.

Useful resources and links:• ‘Ask First: a guide to respecting Indigenous

heritage places and values’ (2002): www.environment.gov.au/resource/ask-first-guide-respecting-indigenous-heritage-places-and-values

• National Native Title Tribunal: www.nntt.gov.au

• The International Association for Public Participation: www.iap2.org

• Fact Sheet – Environment Protection And Biodiversity Conservation Act 1999 for Indigenous Stakeholders www.environment.gov.au/resource/environment-protection-and-biodiversity-conservation-act-indigenous-stakeholders

• ‘Leading Practice Sustainable Development Program for the Mining Industry – Working with Indigenous Communities’ (2007), available on the Department of Industry, Innovation and Science’s website: www.industry.gov.au/Pages/default.aspx

• United Nations Declaration on the Rights of Indigenous Peoples www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

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Appendix 1 Operation of the Environment Protection and Biodiversity Conservation Act 1999

The role of Indigenous peoples under the EPBC ActThe EPBC Act recognises the role Indigenous people(s) play in the conservation and sustainable use of Australia’s natural environment and Indigenous heritage in the objects of the Act. These include:

• to promote a co-operative approach to the protection and management of the environment involving governments, the community, landholders and Indigenous peoples (Subsection 3(1)(d))

• to recognise the role of Indigenous peoples in the conservation and ecologically sustainable use of Australia’s biodiversity (Subsection 3(1)(f ))

• to promote the use of Indigenous peoples’ traditional knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge (Subsection 3(1)(g)).

This is given effect to in a number of ways, including:

• establishing the Indigenous Advisory Committee to advise the Minister for the Environment on the operation of the EPBC Act (Section 505A), taking into account the significance of Indigenous people’s knowledge of biodiversity and land management

• ensuring that the proponent treats the view of directly affected Indigenous peoples as the primary source of information in relation to the Indigenous heritage values, and Indigenous traditions affected by a proposal (EPBC Regulations (2000) Schedule 5B).

About the EPBC Act and Environmental Impact AssessmentThe EPBC Act is the Australian Government’s central piece of environmental legislation. It provides a legal framework to protect and manage matters of national environmental significance, which are:

• world heritage properties

• national heritage places

• wetlands of international importance (often called ‘Ramsar’ wetlands after the international treaty under which such wetlands are listed)

• nationally threatened species and ecological communities

• migratory species

• Commonwealth marine areas

• the Great Barrier Reef Marine Park

• nuclear actions

• water resources in relation to coal seam gas and large coal mine developments.

The EPBC Act also applies to developments that occur in areas managed by the Australian Government or that may impact on these areas, such as land owned by the Department of Defence, or where a development is being undertaken by the Australian Government.

Any action that has or will have, or is likely to have a significant impact on a protected matter must be referred to the Minister for the Environment to determine whether the action requires further detailed assessment and approval. There are policy guidelines available that outline whether an action may significantly impact on any matters of national environmental significance. These are available at www.environment.gov.au/epbc/guidelines-policies.html

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Public consultation requirements for environmental impact assessments under the EPBC Act The environmental impact assessment process under the EPBC Act is a statutory process. As such there are statutory consultation requirements for actions referred and assessed under the EPBC Act. These include requirements to consult with the community, proponents and governments, regarding the assessment and approval of a proposed action. The specific nature of these consultation requirements varies across the referral, assessment and approval stages for a proposed action.

Referral stage

A referral is required where an action is likely to have a significant impact on a protected matter under the EPBC Act. The Minister, or their delegate, has 20 business days to assess whether a significant impact is likely and that further environmental assessment and approval is required.

The Department publishes all referred actions on its website and these are available for public comment for a period of 10 business days: www.environment.gov.au/topics/environment-protection/environment-assessments

Assessment stage

If it is determined that a referred action requires further assessment and approval under the EPBC Act, a specific assessment method will be determined. Each assessment method has a mandatory public comment period, which is set out in the EPBC Act and summarised in the table below. These requirements are in addition to the 10 business day public comment period required during the referral stage.

Assessment Method Minimum Public Consultation Period

Coordinating body EPBC Act Reference

Assessment on Referral Information

10 business days Department of the Environment

Part 8, Division 3A

Preliminary Documentation

10 business days The proponent Part 8, Division 4

Public Environment Report (PER)

20 business days minimum on draft PER

The proponent Part 8, Division 5

Environment Impact Statement (EIS)

20 business days minimum on draft EIS

The proponent Part 8, Division 6

Public Inquiry Hearings held as part of the inquiry must be conducted in public unless the Commission directs otherwise.

The Minister appoints Commissioners and sets terms of reference. Commission conducts inquiry and provides an inquiry report to the Minister.

Division 7

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Approval stage

Following the detailed assessment of the impacts of an action, the Minister may choose whether or not to approve an action, and if approved, what conditions to attach to the approval. These conditions of approval may include requirements to consult specific stakeholders on certain matters, such as consulting with traditional owners on the developing or implementing a heritage management plan or offset.

Strategic assessments A strategic assessment is a high level assessment tool that enables the Australian Government to assess policies, programs and plans prepared by government agencies and private industry. Unlike project-by-project assessments, which look at individual ‘actions’ at individual sites, strategic assessments are landscape-scale assessments that examine a much larger set of actions or ‘classes of actions’ across a broad landscape. This means that once a policy, program or plan is endorsed, future projects that are undertaken in accordance with that policy, program or plan do not need to be referred for assessment.

Strategic assessments also have statutory consultation requirements, including a minimum 28 day public comment period for all draft strategic assessment reports. The minister may require a longer period than this where the issues under assessment are complex.

The public consultation phase may involve public meetings or forums to enable the public to be more involved in the process. Previous strategic assessments have included purpose-designed workshops specifically targeting particular stakeholder groups, including traditional owners. Further information about the strategic assessment process under the EPBC Act is available at: www.environment.gov.au/resource/guide-undertaking-strategic-assessments

Post-approval and regulatory complianceAlthough not a statutory requirement, the Department considers that best practice consultation includes appropriate engagement with Indigenous stakeholders in post-approval stages or during any compliance case management. The Department will also undertake appropriate consultation with Indigenous stakeholders in the course of undertaking compliance and enforcement activities for relevant matters.

Heritage assessments under the EPBC ActUnder the EPBC Act the Minister may ask the Australian Heritage Council (AHC) to assess places for their National Heritage values or Commonwealth Heritage values. Under its Act (the Australian Heritage Council Act 2003), the AHC must have no less than six members (appointed by the Minister) two of whom must be Indigenous persons with substantial experience or expertise concerning Indigenous heritage, at least one of whom represents the interest of Indigenous peoples.

Under the EPBC Act, if the AHC finds a place under assessment might have an Indigenous heritage value, it must take all practical steps to identify each Indigenous person who has rights or interest in all or part of the place, and give persons advised at least 20 business days to comment in writing on the matter. The AHC must pass all comments to the Minister to consider when making the listing decision.

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Management of Indigenous heritage values

National Heritage and Commonwealth Heritage Management Principles are set in regulations to guide the development of management plans for places on the National Heritage and Commonwealth Heritage Lists, including World Heritage properties. These principles promote the integration of all heritage values in management plans (i.e. not restricting plans only to the National Heritage values of National Heritage places) and they promote the active involvement of relevant Indigenous peoples in the management of their heritage values.

Assessments and approvals under bilateral agreements with the States and TerritoriesUnder the EPBC Act, it is possible for the Australian Government to enter into bilateral agreements with the states and territories regarding the assessment and approval of projects that impact on EPBC Act protected matters. Bilateral agreements reduce duplication of environmental assessment and approval processes between the Commonwealth and states/territories. They allow the Commonwealth to ‘accredit’ particular state/territory assessment and approval processes.

In 2013, the Australian Government committed to delivering a ‘one stop shop’ for environmental approvals that will accredit state planning systems under national environmental law, to create a single environmental assessment and approval process. Further information on bilateral agreements is available at: www.environment.gov.au/topics/environment-protection/environment-assessments/bilateral-agreements

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Appendix 2 Hypothetical Example—Best Practice Indigenous Engagement

A proponent was considering a project site for development which was likely to have a significant impact on listed threatened species and a National Heritage place. As part of the early planning for the project, the proponent identified that there was an Indigenous community that might be affected.

The proponent contacted the relevant Aboriginal Land Council representatives and native title representative body for guidance on how to engage effectively with the Indigenous stakeholders. The proponent then developed a consultation plan that took into account the communication needs of the Indigenous community, which included the following key elements:

Appropriate timeframes • Commencing the consultation prior to the

project being referred to the Department of the Environment.

• Providing appropriate timeframes for the Indigenous community to consider and respond to information.

Culturally appropriate• Seeking advice from the relevant Aboriginal Land

Council and native title representative body representatives on the cultural and communication requirements of the community.

• Hiring a facilitator with cultural awareness training and experience to guide the consultation process.

Early, ongoing and effective communication• Engaging early and endeavouring to develop a

strong working relationship.

• Ensuring that the intent of consultation (inform/negotiate) was clear from the outset.

• Genuinely seeking input and expertise from the Indigenous community.

Following substantial planning of the project, which included early engagement in accordance with their consultation plan, the proponent referred the proposal to the Department. The proponent submitted their comprehensive consultation report with the referral as part of their supporting documentation. The report indicated proposed activities during the public consultation period and a proposed timeline for ongoing consultation.

The Department determined the proposal to be a controlled action under the Environment Protection and Biodiversity Act 1999 (EPBC Act) and that further assessment was required. During the assessment phase, the proponent continued to engage directly with the Indigenous community. The statutory public consultation process included relevant advertisements, publications and notices of the proposal which were published in Indigenous media, including newspapers and radio.

As a result of early and ongoing communication, reports provided to the Department demonstrated that consultation between the proponent and Indigenous peoples had addressed the rights and interests in the area. The proponent worked collaboratively with the Indigenous community to develop an offsets package, which provided opportunities for the Indigenous community to deliver on a range of biodiversity conservation measures. The conditions of the project approval included the details of the comprehensive offsets package and ongoing Indigenous consultation for the life of the project.

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